Citation Nr: 1613275	
Decision Date: 04/01/16    Archive Date: 04/13/16

DOCKET NO.  11-12 433	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for a right knee disability.

2. Entitlement to service connection for a left knee disability.  

3. Entitlement to service connection for a heart condition, to include as due to herbicide exposure.

4. Entitlement to service connection for a condition causing pain of the bilateral legs and feet, to include as due to herbicide exposure or as secondary to a service-connected disability.   


REPRESENTATION

Appellant represented by:	Adam G. Werner, Esq.



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Dustin Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to August 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and September 2013 Rating Decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Houston, Texas.

The Veteran testified before the Board at a February 2016 hearing conducted at the RO.  A transcript of the hearing is of record.

The issues of entitlement to service connection for a heart condition and entitlement to service connection for a condition causing pain of the bilateral legs and feet are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a November 20, 2015 letter, received prior to the promulgation of a decision in the appeal of entitlement to service connection for a right knee disability, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested.  The Veteran also requested withdrawal of this appeal at his February 23, 2016 Board hearing and the Veteran's representative subsequently submitted another letter, dated February 24, 2016, again stating the request.  

2. In a November 20, 2015 letter, received prior to the promulgation of a decision in the appeal of entitlement to service connection for a left knee disability, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested.  The Veteran also requested withdrawal of this appeal at his February 23, 2016 Board hearing and the Veteran's representative subsequently submitted another letter, dated February 24, 2016, again stating the request.  

  
CONCLUSIONS OF LAW

1. In regards to the appeal of the issue of entitlement to service connection for a right knee disability, the criteria for withdrawal of an appeal by the appellant's authorized representative have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2. In regards to the appeal of the issue of entitlement to service connection for a left knee disability, the criteria for withdrawal of an appeal by the appellant's authorized representative have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


ORDER

The appeal of the issue of entitlement to service connection for a right knee disability is dismissed.

The appeal of the issue of entitlement to service connection for a left knee disability is dismissed.


REMAND

The Veteran claims entitlement to service connection for a heart condition and a condition causing pain of the bilateral legs and feet.  He asserts the heart condition is the result on in-service exposure to herbicide.  He also asserts the condition causing pain of the bilateral legs and feet is the result of herbicide or, in the alternative, is secondary to his heart condition.  

The Veteran has verified service in Vietnam during the period for which exposure to herbicides is presumed.  See 38 U.S.C.A. §§ 1116(f); 38 C.F.R. § 3.309(a)(6)(iii); Veteran's Military Personnel Records.  VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) and early-onset peripheral neuropathy.  

The Board notes that the evidence of record conflicts as to the nature of the Veteran's heart condition.  The July 2013 VA examiner diagnosed congestive heart failure, heart block, implanted cardiac pacemaker, and implanted automatic implantable cardioverter defibrillator (AICD).  The examiner went on to note that the Veteran's heart conditions do not qualify within the generally accepted medical definition of ischemic heart disease.  No myocardial infarction was reported.  

A November 2015 Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) completed by Dr. W.W., a private provider of treatment for the Veteran's heart conditions, indicates the Veteran has ischemic heart disease.  The doctor further stated the Veteran's chronic heart failure is a form of ischemic heart disease.  Additionally, a history of myocardial infarction is noted.  However, treatment notes for Dr. W.W. also show that at times he has assessed the Veteran as having chronic systolic heart failure, non-ischemic.  

Also of concern is the fact that the VA examiner only commented on whether the Veteran's heart conditions qualify as ischemic heart disease.  No opinion was offered on whether the Veteran's heart condition is otherwise etiologically related to service.  

Moreover while non-ischemic heart disease is not presumed to be the result of herbicide exposure, a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042   (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007).  Put more simply, if the evidence of record establishes that it is at least as likely as not that the Veteran's current heart condition is etiologically related to herbicide exposure service connection would be warranted even though it is not presumed.  

Furthermore, in regards to the Veteran's claim for service connection for a condition causing pain of the bilateral legs and feet, it is not entirely clear there is a diagnosed condition.  However, the July 2013 VA examiner did find the extremities to be abnormal in that they were swollen.  

Therefore, the Board finds it necessary that the VA examiner provide an addendum opinion addressing whether the Veteran's heart conditions qualify as ischemic heart disease in light of the DBQ completed by Dr. W.W. suggesting such is the case.  The addendum should also address whether the Veteran's heart conditions is related to herbicide exposure even though service connection is not presumed.  Additionally, the addendum should address whether the Veteran's heart conditions are otherwise etiologically related to active duty service.  As well, an examination, specifically of the lower extremities, should be conducted and an opinion provided on the etiology of any diagnosed disabilities.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2015) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes).  

Finally, in both his September 2014 Notice of Disagreement and March 2015 VA Form 9, the Veteran requested either a hearing before a Decision Review Officer (DRO) or an informal telephone conference with a DRO.  It is unclear from the record that either occurred.  On remand, please contact the Veteran and inquire as to whether he still wants a DRO hearing or informal conference with a DRO.  

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and inquire if he still wants a DRO hearing or informal conference with a DRO.  If the Veteran requests either make appropriate arrangements.  

2. Return the claims file to the provider of the July 2013 opinion.  If unavailable, the claims file should be forwarded to another VA examiner.  If it is determined an additional examination of the Veteran is necessary, one is to be arranged.  The entire claims file must be reviewed by the examiner in conjunction with the examination. 

The examiner is requested to address the following:

a. Do any of the Veteran's heart conditions qualify within the generally accepted medical definition of ischemic heart disease?

Note: In answering question (a) please comment on the November 2015 DBQ completed by Dr. W.W.

b. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any of the Veteran's heart conditions are etiologically related to his active duty service, including in-service exposure to herbicide?

3. Also, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any lower extremity disability that may be causing the Veteran's pain and numbness.  All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail.  The claims file should be made available for review in connection with the examination. 

The examiner is requested to address the following:

a. Please, list all diagnoses with symptomatology that include pain and numbness in the lower extremities.

b. In the event peripheral neuropathy is diagnosed, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the peripheral neuropathy developed within a year of the Veteran's discharge from active service?

c. As to each disability listed, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the diagnosed disability is etiologically related to the Veteran's active duty service, including in-service exposure to herbicide?

d. If the answer to (c) is less likely than not (i.e., probability less than 50 percent), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed disability is proximately due (caused by) the Veteran's heart conditions?

e. If the answer to (d) is less likely than not (i.e., probability less than 50 percent), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed disability has been aggravated beyond its normal progression by the Veteran's heart conditions?

The term "aggravation" refers to a chronic or permanent worsening of the underlying condition, as contrasted with mere temporary or intermittent flare-ups of associated symptoms that resolve with return to the baseline level of disability.  So aggravation contemplates a permanent worsening of the condition above and beyond its natural progression.

Both examiners are requested to provide a complete rationale for any opinion expressed based on the examiners' clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiners should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.

4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs